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Litigation Hold Notices: Send Them Out and Hope for the Best?

Posted on February 19th, 2014

In our last post, we discussed the timeline of events that gave rise to the duty to preserve evidence in the transvaginal mesh MDL In Re: Ethicon, Inc.  Pelvic Repair Systems Product Liability Litigation, MDL No. 2327 (S.D.W.Va. February 4, 2014). In ruling on a plaintiff Motion for Spoliation and Sanctions, the court found that the defendants sent out litigation hold notices when the duty arose. Let’s examine the reasoning why the court deemed the process “riddled with holes.”

In examining Ethicon’s culpability in the alleged spoliation, the court looked at the actual process that took place after these initial notices were sent out. The record showed that the notices were sent from the legal department/risk management to district managers, who were then given broad discretion to determine which custodian to target and what data should be preserved. The managers also had the job to collect data from departing employees.

The court cited testimony by defendants’ own Rule 30(b)(6) representative, who testified that employees did not understand the litigation holds, that there was no consistency in preserving the documents and that Ethicon allowed employees to make their own methods to preserve and segregate documents. The witness testified that there was a great disconnect across the board: departing employees assumed data left on their computers would be retained, managers believed departing employees would inform them if relevant data was on the computers, and IT departments believed computer hard drives left from departed employees could be wiped and recycled.

Ethicon conceded that its litigation hold process “failed miserably” in a few instances. The court agreed that the in house counsel should have, at a minimum, “educated employees on what measures were expected of them to collect and preserve material evidence.” Concluding that such a failure to implement and monitor its litigation holds was negligent, and possibly willfully negligent, the court declined to impugn bad faith.

Of course, the plaintiff steering committee’s quest for spoliation sanctions does not end here. Even if the litigation hold process was negligent, plaintiffs still must establish that the missing evidence was relevant, and that its loss was prejudicial. We will continue our discussion of this case in our next post!

ILS – Plaintiff eDiscovery Experts

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